Scottish Court of Session Decisions

Opinion.—“The circumstances of this case are somewhat unusual, and they involve the consideration of questions in the law of parent and child which are undoubtedly delicate. I wish very much that the parties had seen their way to deal with the case otherwise than on the principles of strict law, and had been able to come to terms which would have avoided litigation, and would probably in the end have been beneficial to both parties. But the defender insists that his legal obligations shall be determined, and of course he is within his right in so requiring.

The pursuers are the two sons, aged respectively 18 and 20, of a gentleman who at the time of his marriage in 1875 was possessed of a considerable fortune, and who, five years afterwards, when he was divorced by his wife, appears to have had still an income from property and invested funds of over £1000 a-year. He is how reduced, from causes into which I need not enter, to the ownership of a capital fund of about £2500, and to the reversion, after his wife's death, of an annuity which she enjoys under their marriage-contract, secured as I gather upon certain feu-duties forming part of the defender's original property. He is not in any employment, or earning any income from his own exertions, and he states that he is in delicate health, and is at present in a condition of indigence. It is certain, however, that once the question raised in the present case is determined, he will or may put himself in possession of the fund of about £2500 to which I have referred, that fund having been put in trust at the time of the divorce to secure the aliment allowed to their mother for the present pursuers, and being now, it is admitted, set free for the defender's use, subject to the performance of his obligations towards the pursuers as these may be defined under this action.

The position of the two pursuers on the other hand is this:—They were at the time of the divorce in 1880 in pupillarity. and by the decree of divorce their mother was awarded for their aliment a sum of £150, being £75 for each. That aliment, which was secured by a trust voluntarily constituted at the time, was continued after the two boys attained puberty, if not with the consent of the defender, at least without any interpellation of the trustees, or any objection on his part. In this way the two pursuers have hitherto been brought up, and having both resolved to enter the medical profession, their education has hitherto been directed towards that object, the elder having already entered on his medical curriculum, and the younger being, it appears, just about to do so. They have not accordingly been apprenticed to any trade or other profession, and whoever may be responsible for the circumstance, it is certain that neither of them is, or can for some years be, in a position to earn his own livelihood. I by no means suggest that they have been brought up otherwise than suitable to their station in life, but even if it were thought differently the fact remains that brought up and educated as they have been, no occupation or calling is at present open to them by which for some years to come they could support themselves.

The first question therefore is, whether being so circumstanced they have a claim for aliment against their father. I am of opinion that they have. They are unable at present to support themselves, and that is enough. The law of Scotland does not hold that a father's obligation to aliment his children ceases when they attain puberty, or even when they attain majority. He is bound to maintain and educate them until they are able to support themselves, and even if after they are set out in the world they become indigent, he is still bound to support them so far as his means allow. And indigence may be constituted not merely by disease of physical incapacity, but by inability to obtain employment suitable in itself and affording a suitable maintenance. It is hardly necessary on this point to cite authorities. They will be found collected in Lord Fraser's work on Parent and Child, page 101.

The next question is, what is the measure of aliment for which the defender is liable. The principle, I think, is that he is liable so far as he has the means to provide such aliment as is necessary with strict economy to maintain and educate the children suitably to his condition in life. In the present case the defender is bound by the marriage-contract to ‘make payment of certain provisions to the pursuers at his death amounting to £4000, and until the said provisions should be paid or become payable, or until the pursuers should be otherwise provided for, to aliment, maintain, and educate the pursuers in a manner suitable to their station in life.’ But as I read the authorities the rule of the common law is the same. The station in society—the position in life of the parent and the child are to be considered. A pauper's allowance is not the rule. Nor is the allowance claimable by the child of a labourer the measure of that claimable by the child of a man of fortune. The leading case is that of Maule v. Maule, 1 W. and S. 266, followed by Mackenzie v. Mackenzie, 3 Macph. 177, and other cases mentioned in Lord Fraser's book, page 88.

This being so, what is the lowest sum upon which the pursuers can during the next year or two live, completing their education or otherwise, preparing themselves for the business of life, and now far is the defender able to afford that sum?

I do not see my way to allowing a sum sufficient in the case of either pursuer to pursue to its close a medical curriculum. That would, I think it is plain, involve a scale of expenditure larger than the defender (who was not consulted as to the pursuer's choice of a profession) could reasonably afford. Neither can I take the Lord Ordinary's figure in the action of divorce (£75 a-year) as conclusive under existing circumstances. I wish to keep strictly within the limits defined by law, and, on the whole, I think each pursuer should have £50 a-year—these allowances

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